City of Lakewood

Development Review Division
Community Planning & Development

Study Session Staff Report

TO:                             Lakewood City Council
                                   
THRU:                       Jay Hutchison, Public Works Director
                                   
FROM:                       Tim Gelston, Development Review Manager
                                   
REPORT DATE:      May 26, 2009
                                   
PC DATE:                 June 1, 2009
                                   
SUBJECT:               Ordinance Amendment Case No. OA-09-002, Amending portions of Article 17-16: Non-Conforming Uses and Amortization
 

Background

Projects that provide or modify public facilities can affect pre-existing parcels and structures.  Examples of such projects include the light rail line, widening state highways or city streets, and construction of new city streets. Specifically, acquisition of portions of pre-existing parcels or construction of new public improvements can cause adjacent parcels or structures located on those parcels to not conform to zoning standards such as lot size, frontage requirements, setbacks, fencing requirements, etc.

For this reason, Section 17-16-9 of the Municipal Code appears to have been intended to provide an opportunity for relief when a public project affects a parcel’s or structure’s conformance with zoning criteria.  However, the ordinance is somewhat vague, provides a cumbersome process for establishing the affected property’s status, and has rarely, if ever, been used.

With partial acquisitions for the light rail line occurring and the proposed expansion of portions of Wadsworth Boulevard on the distant horizon, City staff set out to simplify and improve Section 17-16-9 for the owners of property that will be affected by these and other public projects.

The proposed ordinance amendment would modify applicable zoning standards to the minimum extent necessary to ensure that properties directly affected by public improvements or partial acquisitions can continue to be considered “conforming,” as though the public project had not affected the properties’ conformance with zoning standards.

Analysis

Problems with the current version of 17-16-9 (Attachment A) include:

1. Obtaining a declaration of legal, conforming status requires an application to and hearing before the Board of Adjustment, thereby burdening property owners with unnecessary uncertainty, delay and expense.
2. In some cases, the Board of Adjustment is mandated by the ordinance to grant a variance, which raises the question of why a Board hearing is even necessary.
3. An apparently arbitrary threshold of whether the variance requested is more or less than 20% determines whether the Board of Adjustment has any discretion.
4. The 20% threshold determines whether a variance granted by the Board of Adjustment results in the parcel or structure being “legal, conforming” or “legal, nonconforming.”  A determination of nonconformance reduces the options the owner has for future modifications to a structure and use of a parcel.
5. Above the 20% threshold, the Board of Adjustment is authorized to deny legal nonconforming status if it finds that a hazardous situation would result or that the situation is otherwise “unreasonable,” but the ordinance does not recognize that unreasonable situations and/or hazardous conditions may exist even below the 20% threshold.
6. The ordinance does not explain what happens if the Board of Adjustment denies legal, nonconforming status because of a “hazardous situation;” i.e., if the property does not obtain legal, nonconforming status, what exactly is the status?

The proposed ordinance amendment (Attachment B):

1. Avoids the time, expense, and uncertainty of a public hearing and Board of Adjustment determination.
2. Removes the arbitrary 20% threshold.
3. Eliminates the potential that the public project could cause an existing parcel or structure to become nonconforming.  This goal is accomplished by modifying, to the minimum extent necessary, the zoning standards applicable to the parcels and structures as they exist at the time of the public project.
4. Allows reconstruction of the structure if the structure that existed at the time of the public project is unintentionally damaged or destroyed (e.g., if a building burned down, it could be rebuilt.)
5. Allows adding onto or otherwise improving a structure, which often requires demolishing a portion of the structure.  This goal is accomplished by allowing the modified zoning standards to continue to apply even if a structure is intentionally damaged or destroyed to the extent of up to and including 60% of a structure’s value.  In such a case, the structure could be modified or expanded to the extent allowed by the zoning standards as modified at the time of the public project unless it would create a public hazard. 

An example of such a hazard would be a building expansion that would reduce sight distance at an intersection below the acceptable level.  The 60% threshold is consistent with the zoning ordinance provision for nonconforming structures.

1. Ensures that substantial or total redevelopment will comply with zoning standards in effect at the time of redevelopment.  Intentional demolition or destruction of more than 60% of a structure is deemed “redevelopment” for this purpose.  Again, the 60% threshold is consistent with the existing nonconformance provision.
2. Ensures that zoning standards modified due to a public project are codified or further modified at the time of any subsequent rezoning.

In addition to reducing the negative effects of a public project on parcels and structures, this ordinance amendment will better inform the appraisal and acquisition process associated with public projects.  An appraiser should consider a public project’s effects on structures and parcels when determining the compensation appropriate for an acquisition.  The proposed ordinance eliminates the uncertainty of a Board hearing, which will allow the appraiser to be more definitive in evaluating a public project’s effects.  Eliminating the potential that a public project will directly cause a parcel or structure to become nonconforming will give the appraiser and owner better information upon which to base negotiations.

Summary

Some property owners along the light rail corridor are concerned about the RTD project affecting the application of zoning standards to their properties.  The current ordinance addressing this question is cumbersome, provides uncertainty as to the effects, and may result in the RTD project making some parcels or structures nonconforming.  The proposed amendment is designed to eliminate all three concerns, and offers similar protection to properties affected by acquisitions for or construction of other public projects.  Because RTD is reportedly very close to implementing the acquisitions associated with the West Corridor light rail line, the ordinance will have an emergency clause when it is presented to the City Council.

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